The Reviewer told the claimant that he would decide the case. Subsequently, for an unknown reason, the file was given to another Reviewer: the statute provides that where a Reviewer is unavailable, another Reviewer shall finish the review.

The claimant was not informed that the first Reviewer’s involvement had ceased. The second Reviewer concluded that the claimant should not be given refugee status. Was it unfair, or a breach of a legitimate expectation, for the second Reviewer to reach a decision without giving the claimant an oral hearing? The court held that it was.

Flick and Gleeson JJ. discussed the value of an oral hearing at some length, noting that there is no universal right to be heard orally in all cases (para. 9), especially due to “considerations such as costs and the impact of requiring an oral hearing in an area of administrative decision-making which may be a “high volume” jurisdiction…” (para. 10). Where credibility is in issue, of course, the case for an oral hearing will be stronger. But it depends on the context:

In the present statutory context, no support should be given to any broadly expressed conclusion that all applicants for refugee status are entitled to an oral hearing in all circumstances. Invariably questions of credit are involved and quite frequently claims of the refugee applicant are resolved substantially by reference to findings made as to credibility. On occasions, those findings are founded upon demeanour; on other occasions those findings are founded upon inconsistencies in documents sought to be relied upon or the paucity of documents supporting claims made orally. And it may well not be possible to determine in advance of a hearing whether findings as to credibility will be made or the basis upon which adverse findings may be made. Even greater reason for caution emerges when even cursory consideration is given to what an oral hearing may entail, including a consideration of the possible need for interpreters and other assistance to those who may suffer an intellectual or other disability which prevents them from adequately presenting or impedes their ability to present a claim in writing. To the extent that the costs incurred in providing an oral hearing is a consideration of relevance in determining the content of procedural fairness, those costs in the present area of government decision-making could well be considerable (para. 15).

They went on to find in favour of the claimant on the basis that his legitimate expectation that the first Reviewer would determine his application had been breached:

the Appellant had no reason to believe anything other than that the recommendation to the Minister in his case would be made by the first Independent Merits Reviewer before whom he had an oral hearing. Indeed, his understanding from what was communicated to him during the course of that interview was that it would be that Interviewer who would proceed to make the recommendation…Where a claimant has been led to believe by both statements made by a person who was an Independent Merits Reviewer and by that person’s conduct in conducting a hearing or interview, that the claim is being processed by that person, the claimant has a legitimate expectation that the process will be completed by that person. Alternatively, a claimant who has participated in an administrative process whereby an oral hearing or interview has been conducted has a legitimate expectation that any recommendation made to the Minister will be a recommendation made following the same administrative process (paras. 23-24).

At this point, you may ask yourself, “So what?” Did the claimant actually suffer any injustice here? Flick and Gleeson JJ. thought so:

Even if no oral hearing was required to satisfy the requirements of procedural fairness, the present Appellant suffered a “practical injustice”…or a practical detriment by the change of the administrative process which turned an oral hearing or an administrative process including an interview into merely another opportunity to make written submissions. And he was given no opportunity to address this detriment, by making submissions to the Independent Merits Reviewer who made the adverse recommendation as to how the defeat of his legitimate expectation might be redressed. There was a fundamental change to the administrative process being pursued without the Appellant being alerted to the change.

So the change, in and of itself, was prejudicial.

This seems rather convenient. Would it not be more accurate to say that the claimant needed to be independently entitled to an oral hearing in order for the procedure here to have resulted in unfairness? Nichols J. concurred, framing the issue as follows:

The contents of the requirements of procedural fairness may be affected by what is said or done in the course of the decision-making process. If at the commencement of the process a decision-maker represents to the person affected that he or she will be given an oral hearing, then that may give rise to a reasonable expectation that the representation will be fulfilled or, at least, that it will not be departed from without reasonable notice. Whether or not there is a denial of natural justice in the event of such a departure is a matter that must be considered in light of all the circumstances, including whether or not the person affected was given notice of the change in procedure before the decision was made, and whether it could be said that the person affected had been given a fair hearing in spite of him or her not being given an oral hearing (para. 43).

The procedure followed was unfair:

In the present case the representations made to the appellant during the course of the interview with the first reviewer bore upon the content of the obligation to extend procedural fairness. The appellant was reasonably entitled to expect that his claims would be considered by the person by whom he was interviewed and that, if for some reason that might not occur, he would at least be told of that fact so that he might seek the oral hearing that he thought he had already received…It is true that there is no evidence from the appellant to indicate what he would have done if given the opportunity to attend an oral hearing before the second respondent or, at least, if he had been given the opportunity to request an oral hearing before the second respondent. But in circumstances where the appellant accepted the invitation to participate in an oral hearing before the first reviewer, and in the absence of any evidence to suggest that he would have responded differently if invited to attend a further interview before the second respondent, I would infer that it is more likely than not that the appellant would have sought an oral hearing before the second respondent if he had been told that the first reviewer by whom he was originally interviewed had been replaced (pars. 48-49).

There was a chance, in Nichols J.’s view, that the matter might have been differently decided had there been an oral hearing before the second Review (pars. 53-54).

Nichols J.’s approach seems more convincing to me. Beyond all the talk of fairness, credibility and legitimate expectation, though, isn’t this simply an example of “s/he who hears must decide”? I would be interested to hear what readers have to say.